June 2011

The year has “seen a remarkable shift” ushering some big victories for the advancement of equality for members of the LGBT community, and some of those victories included tremendous help from Republicans writes UCLA law school professor Adam Winkler.

In a piece for The Huffington Post, Winkler notes the lawsuit lodged by “an all-star legal team that included Ted Olson, the Republican lawyer who helped George W. Bush” capture the White House in 2000, which led to an opinion by then federal court Judge Vaughn Walker striking California’s anti-gay marriage law known as Proposition 8. The repeal of the military’s noxious “Don’t Ask, Don’t Tell,” policy was also helped by Republicans, including Secretary of Defense Robert Gates.

Of course, no one should give all or even most of the credit for such important developments to the Republican Party, which remains the home of gay rights opponents. Still, many of the changes of the past year would not have been possible had only Democrats supported them. Moreover, for these advances in gay rights to last, they need bipartisan backing. We’re just beginning to see that happen, thanks to a handful of courageous Republicans who see that discrimination against gays and lesbians violates core American values of equality, dignity, and individual liberty.

The New York Times in two editorials on the historic N.Y. action also said that the four Republicans share credit for the marriage equality bill that passed the state legislature.

But The Timesnoted that the Republicans led by State Sen. Stephen Saland “insisted on language that carves out exceptions for religious institutions and not-for-profit corporations affiliated with tax-exempt religious entities to refuse to marry a same-sex couple or to allow the use of their buildings or services for weddings or wedding parties. There was simply no need for these exemptions, since churches are protected under both the federal Constitution and New York law from being required to marry anyone against their beliefs.”

The Times rightly concluded that those Republican-led exemptions are laden with “discriminatory intent.”

In its second editorial, The Times blasted President Obama for his difficulty in supporting marriage equality, which may not help with the Right, but could “help him among his cheerless base.”

A series of catastrophic regulatory failures in recent years has focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The failures are the product of a destructive convergence of funding shortfalls, political attacks, and outmoded legal authority, setting the stage for ineffective enforcement and unsupervised industry self-regulation. From the Deepwater Horizon spill in the Gulf of Mexico that killed eleven and caused grave environmental and economic damage, to the worst mining disaster in 40 years at the Big Branch mine in West Virginia with a death toll of 29, the signs of regulatory dysfunction abound. Peanut paste tainted by salmonella, lead-paint-coated toys, sulfur-infused Chinese dry wall, oil refinery explosions, degraded pipes at U.S. nuclear power plants: At the bottom of each well-publicized event is an agency unable to do its job and a company that could not be relied upon to put the public interest first.

Although everyone should be able to agree that these events are intolerable to the extent they are preventable, thoughtful analysis is too often sidetracked by the nation’s polarized debate over the role of government in our daily lives. Conservative commentators argue that accidents like the Gulf spill are the inevitable byproducts of industrialization, daunting in the best of times but having little to do with government failure. They say that over-regulation is a far more serious problem than under-regulation because bureaucrats run-amok are hobbling the country’s long-delayed recovery from a devastating world-wide recession. Progressive commentators respond that one of the government’s most important jobs is to prevent industry from trading safety for profit, by compelling manufacturers to install redundant, fail-safe mechanisms to protect public health and the environment. Spills, explosions, unchecked carbon emissions, tainted drugs, and unhealthy air pollution represent chronic failures by government to forbid conduct that lies in the mainstream of business as usual.

During his presidential campaign, Barack Obama seemed to subscribe to the progressive view, declaring that the role of government is to help people when they cannot help themselves and raising the strong expectation that he would sponsor affirmative reform to prevent the damage produced by the sharper edges of a capitalist economy.

Following today’s latest U.S. Supreme Court opinion striking a campaign finance law, a growing number of court-watchers are noting the Court’s tendency to side with corporate interests.

“There seems to be, according to a growing number of court-watchers, a troubling trend of victories for corporate interests,” ACS Executive Director Caroline Fredrickson said. “For example, critics are already noting that the Supreme Court has ended its latest session with another decision overturning a campaign finance regulation – this time an Arizona law intended to help candidates who forgo private donations.

She added, “The current high court session also included the decision in Wal-Mart v. Dukes, which shut down the ability of millions of former and current Wal-Mart women workers to band together in class action litigation to challenge alleged discrimination.”

The high court ruling 5-4 invalidated the Arizona Citizens Clean Elections Act which, in part, provided public dollars to candidates who agreed to limit their personal spending. The majority, led by Chief Justice John Roberts Jr. said, “Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.” Roberts was joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito Jr., the same majority that invalidated campaign finance regulation law in Citizens United v. FEC.

Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, lodged a dissent. Kagan defend programs like Arizona’s writing, it “does not discriminate against any candidate or point of view, and it does not restrict any person’s ability to speak. In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate.”

In a piece for Slate, Paul Clement, former U.S. Solicitor General during a portion of the George W. Bush administration, wrote that it appears “that 5-4 divisions over campaign finance laws are here to stay. The newest justices – Kagan and Sonia Sotomayor – are passionate defenders of such laws.”

And Clement said the majority “seems undeterred, maybe even energized, by criticism of its First Amendment holdings in the campaign-finance realm. The dissenters seem equally resolute.”

First Amendment Center President Ken Paulson provides analysis of the case, noting that the opinion reaffirms that sexual content and violent content are viewed differently by the court, that entertainment is protected by the First Amendment, and that “states can’t target emerging media,” such as video games.

“Overall, the Supreme Court’s ruling is a vibrant application of 219-year-old principles to cutting-edge technology and asserts that any new forms of communication or media to come will be protected by the First Amendment,” Paulson writes.

For those who want to revisit the oral argument, litigator Richard M. Zuckerman has analysis for ACSblog, while Slate’s Dahlia Lithwick provided an entertaining take, summarized as, “Gamers: Meet the old people. Old people: Try to find the power-on button. Everyone else, search for James Madison's avatar and ask what he thinks of Grand Theft Auto.”

Despite rhetoric from some Tea Party leaders that says the Obama administration is running rough shod over the founding document, the country is not in “danger of flipping the Constitution on its head,” writes Richard Stengel in an extensive piece for Time.

Stengel, in “One Document, Under Siege," continues:

Their view [Tea Party faithful] of the founding documents was pretty well summarized by Texas Congressman Ron Paul back in 2008: ‘The Constitution was written explicitly for one purpose – to restrain the federal government.’ Well, not exactly. In fact, the framers did the precise opposite. They strengthened the center and weakened the states. The states had extraordinary power under the Articles of Confederation. Most of them had their own navies and their own currencies. The truth is, the Constitution massively strengthened the central government of the U.S. for the simple reason that it established one where none had existed before.

If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the ‘necessary and proper’ clause, which delegates to Congress the power ‘to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by the Constitution in the Government of the United States, or in any Department of Officer thereof.’ Limited government indeed.

Stengel’s article takes a look at some of the more high-profile constitutional debates, such as those focusing on Congress’s power to regulate commerce, in the context of the landmark health care reform law, and the 14th Amendment’s birthright citizenship clause.

In the concluding graphs, Stengel touches on the debate over constitutional interpretation, writing:

The Constitution is silent much of the time. And that’s a good thing. Two hundred twenty-three years after it was written, the Constitution is more a guardrail for our society than a traffic cop. The Constitution works so well precisely because it is so opaque, so general, so open to various interpretations. Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.

Accompanying the article is a new Time poll, showing that 54 percent of respondents said they agreed that the government should interpret the Constitution “based on changes in society,” as opposed to interpreting “exactly what’s spelled out in the Constitution.” Forty-one percent of respondents said the government should “following exactly what’s spelled out in the Constitution ….”

Regarding the 14th Amendment’s clause, which states that all persons born in the U.S. are citizens, 62 percent of respondents said the provision should not be revised.